Supreme Court divided about upholding California's gay marriage ban

WASHINGTON — The U.S. Supreme Court appeared reluctant to grant sweeping marriage rights to same sex couples, but at the same time also suggested California's Proposition 8 ban on gay marriage may not survive.

WASHINGTON — The U.S. Supreme Court appeared reluctant to grant sweeping marriage rights to same sex couples, but at the same time also suggested California's Proposition 8 ban on gay marriage may not survive.

During more than an hour of arguments today, the justices were clearly divided over California's law and whether the time is right for the high court to even take on the gay marriage question. Justice Anthony Kennedy, a key swing vote, wondered whether the court perhaps should not have taken on the controversy at this time.

With both liberal and conservative justices particularly worried about a broader ruling that might apply to all states, 37 of which now ban gay marriage, the court pressed lawyers on both sides about how far they should go.

"Is there any way to decide this case in a principled manner that is limited to California?" Justice Sonia Sotomayor at one point asked Theodore Olson, who argued the case for same-sex couples.

But the questioning also cast doubt on Proposition 8's future, with some justices clearly concerned it may trample on the rights of gay and lesbian couples.

How does the law affect the roughly 40,000 children of same-sex couples now in California Kennedy asked Proposition 8 lawyer Charles Cooper, who argued about the need to preserve traditional marriage to protect children.

"The voice of those children is important in this case, isn't it?" Kennedy asked.

Other justices, including Chief Justice John Roberts, were skeptical of a court decision finding same-sex marriage bans unconstitutional. "It's just about the label (of marriage) in this case," Roberts told Olson. "All you're interested in is the label, and ... in changing the definition of the label."

There was concern among some justices that Proposition 8's sponsors may not have the legal authority to defend the law for the state, with the governor and attorney general refusing to do so. A finding that the sponsors lacked such authority would result in enforcement of the lower court decision that the gay marriage ban unconstitutional. That outcome would allow gay marriage in California, leaving broader decisions for another day.

Even there, however, the justices were splintered. Several indicated they were troubled by the possibility the governor and attorney general could trump a ballot measure they oppose simply by refusing to defend it in court.

The Supreme Court is reviewing a federal appeals court ruling last year that found Proposition 8 unconstitutional because it stripped away a previous right for same-sex couples to marry in California. In that ruling, the 9th U.S. Circuit Court of Appeals took a narrow approach that, if adopted by the Supreme Court, would limit the legal impact to California, and open the door to same-sex marriages in the nation's largest state.